Maki v. Murray Hospital ( 1932 )

I agree that upon the circumstances shown the rule of resipsa loquitur applies in this case. Consequently, the defendant Murray Hospital was called upon to explain how it came about that plaintiff, a patient under its care, jumped from a window, to his serious injury, and that the defendant was not guilty of the negligence charged in the complaint.

To sustain a judgment in favor of plaintiff the proof must show that defendant was guilty of the negligence charged.

Now, the complaint sets forth that the hospital employed Dr. Worden and several other physicians and surgeons, and several nurses "each and all of whom were servants, agents and employees of the defendant corporation, and engaged in the performance of their respective duties as such servants, agents and employees." It avers that plaintiff became a patient of the hospital; that by reason of his erysipelas he was mentally incapable of properly caring for himself or knowing what he was doing, and it was the duty of the defendants to keep him constantly attended by a competent nurse or nurses, restrained, guarded, and under control and in a safe place where he could not do himself any harm or injury; and that on the 23d of March, 1928, while plaintiff was "under the exclusive charge, care and control of said defendants as aforesaid and while so seriously sick and afflicted with said erysipelas and being delirious and violent therefrom so as to be unable to properly care for himself and know what he was doing, or to be conscious of the danger surrounding him, or to protect himself therefrom," he "was, through the carelessness, negligence and unskillfulness of the said defendants and the said agents, servants and employees of said corporation, in failing to give to said plaintiff the care and attention which his condition required, and in failing to properly watch, restrain, control, guard and care for him while he was in said delirious condition, and by reason of such delirious condition being unable to properly care for himself, carelessly and negligently permitted and allowed by said defendants to leave his said bed and said room and to fall from the said third floor or story of said building to the ground. * * *" No other charge of negligence appears in the complaint.

Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. (Kakos v. Byram, 88 Mont. 309,292 P. 909; Birsch v. Citizens' Elec. Co., 36 Mont. 574,93 P. 940; Zanos v. Great Northern Ry. Co., 60 Mont. 17,198 P. 138.)

As was said by Mr. Chief Justice Nelson in Harvey v.Dunlop, Lalor's Supp. (Hill Denio) (N.Y.) 193: "No case or principle can be found, or if found can be maintained, subjecting an individual to liability for an act done without fault on his part."

Mr. Justice Matthews says correctly that a hospital conducted for private gain is not an insurer of its patients against injury inflicted by themselves; it is only required to use ordinary and reasonable care and diligence in their treatment and care. Also that "a patient is entitled to such reasonable care and attention for his safety as his mental and physical condition may require; the degree of such care should be in proportion to the physical and mental ailments of the patient rendering him unable to look after his own safety." But "no one is required to guard against or take measures to avert that which, under the circumstances, is not likely to happen, or, more accurately, which a reasonably prudent person under the circumstances would not anticipate as likely to happen. No man does, or is required to, take measures to avert dangers which the circumstances as known to him do not suggest as reasonably likely to happen." (Fetzer v. Aberdeen Clinic, 48 S.D. 308, 39 A.L.R. 1423,204 N.W. 364, 366.)

In the case last cited the court approved an instruction in which the court told the jury: "That a patient may be delirious or not in control of his mental faculties is not sufficient to put the defendant, its agents, servants, or employees on their guard to prevent self-inflicted injury." They are put on guard "only when they have notice of conduct or language on the part of the patient evidencing an hallucination or a purpose to inflict such injuries."

In my opinion the majority is in error in saying that the instruction, paraphrased from Hignite's Admx. v. LouisvilleNeuropathic Sanitorium, 223 Ky. 497, 4 S.W.2d 407, should have been given in this case. It is not applicable to the facts.

No question is made as to the competency of Dr. Worden or any other of the physicians, nor was there any criticism of the treatment.

The explanation given by the defendant shows that the injury was not caused by any want of ordinary care, but by an extraordinary action on part of the plaintiff, which could not reasonably have been anticipated. There was nothing to suggest that he would become violent. Plaintiff was assigned to a special room and given a special nurse, and thus isolated only because erysipelas is highly infectious (this is especially important where other patients are suffering from open wounds), and not because of any apprehension that he might become violent, for violence is not a characteristic of the disease. The physician in charge of plaintiff, Dr. Worden, was competent and experienced in the treatment of erysipelas. He had been connected with the Murray Hospital for six years, "there all the time." He testified that when plaintiff arrived at the hospital on March 20 he was quite sick; that night his temperature went as high as 104. The next day, the 21st of March, he was ill, but better. On the twenty-second his temperature had dropped to 102, and on the night of that day he was a little improved, although the swelling was quite large. "The temperature was down; he was perfectly normal as far as any mental derangement was concerned; he was reported as eating and sleeping well, although he mumbled in his sleep and was quite restless."

Dr. Worden visited the patient three times a day. There was nothing suggesting that the patient would become violent.

Miss Dushchee, the nurse, testified that plaintiff's fever rose in the afternoon, and that is the general course with fever patients. Before the accident his delirium would show in the morning from about 3 to 4:30 o'clock; then he would sleep, and waken rational. On the morning of March 23, after having the hallucination about 4 o'clock that his legs had been cut off, he went to sleep at 5 o'clock and slept until 6:30. His temperature then was 102 and he seemed rational. Dr. Worden knew the patient's condition during the preceding days but had not made his call on the morning of the twenty-third before the unfortunate man jumped out of the window.

Dr. Karsted, a graduate of Johns Hopkins, has practiced his profession in Butte since his graduation in 1902. Erysipelas, he said, is treated like every other acute infectious disease in a hospital. It is not customary to have a special nurse attendant upon a patient suffering from erysipelas, except in a hospital. The doctor said: "I imagine probably one-third of the erysipelas cases I treated were treated in a hospital, and the other two-thirds were treated at home. It is not customary to guard patients suffering from that disease; * * * there is no more likelihood of a person suffering from erysipelas being delirious than there would be from a patient suffering from pneumonia. It is not characteristic of erysipelas for the patients to attempt to escape from a room or to do themselves an injury." Dr. Karsted was an independent practicing physician not connected with the hospital.

Practically the same testimony was given by Dr. John B. Frisbee, a physician of twenty-nine years' experience. He had treated, he would say, over 100 cases of erysipelas, and in his experience he had no recollection of having had to restrain a patient, or to have a special guard in the treatment of the disease. "In my opinion and experience as a doctor and physician a patient suffering from erysipelas would not be more liable or more apt to have hallucinations than a patient suffering from what we term pneumonia."

Dr. J.C. Shields, a physician of thirteen years' experience, connected with the St. James Hospital, gave practically the same testimony. He has treated or seen in consultation from five to seven erysipelas patients a year during twelve years' experience. It has not been the custom to place people suffering from that disease in a room with windows and doors barred or to place them in charge of a man nurse or a nurse of large physical strength, nor to put them in strait-jackets. This testimony was not contradicted.

In my opinion the evidence shows that Miss Dushchee, the nurse, was fully competent. I am considering the case upon the evidence. According to that given by witnesses competent to express an opinion upon the subject, she had been in service at the Murray Hospital for a period of ten months, and it must be conceded that during that period of time her work could hardly have escaped the attention of Dr. Worden who was there all the time. He said: "I was familiar with Miss Dushchee's competency as a nurse at that time." He knew plaintiff had delirious spells.

Miss Dushchee testified that she had taken care of erysipelas cases before, although this was her first "special" assignment in an erysipelas case. She had been assigned to other cases. Her testimony indicates that she was familiar with fever cases but she was not asked whether she was familiar with delirium. Dr. Worden, however, testified: "I thought that Miss Dushchee was as able to handle a delirious patient as any nurse that I knew of. Nurses handle delirious cases all the time, and I thought Miss Dushchee was thoroughly competent to handle this man, whose weight and size I knew."

Miss Anna Christiansen, assistant superintendent of nurses at the hospital when plaintiff was a patient there, considered Miss Dushchee a competent and capable nurse to be placed in charge of plaintiff. In fact, the reason that Miss Dushchee was assigned to plaintiff was because she was considered a very responsible nurse; Miss Christiansen said it was a contagious case "and we always put our best nurses on contagious cases on quarantine rules; they have to live up to quarantine rules and it takes a competent nurse to do that."

The "solid food" furnished upon the regular tray seems to have consisted of cereal, fruit, toast, coffee. The argument that plaintiff's temperature rose because of the food given him seems too trivial to discuss. It is notable that while plaintiff was served with these trays, and his temperature was 104 when he came to the hospital, it declined and did not again rise above 102. There was a chart kept showing the patient's condition and the doctor did not prescribe any special food so far as the record shows.

Beyond question there was nothing in plaintiff's conduct to suggest that he might become violent before he saw the painter through the transom. (As to this no negligence is alleged.)

The patient, waking at 6:30 with fever at 102, had eaten and enjoyed his customary breakfast from 7:30 to 8; he conversed, seemed rational. About 8 o'clock, seemingly, he slept. The painter, in erecting his ladders, did not disturb him. About 8:05, not later than 8:10, the painter glanced through the transom, observing a patient lying quietly in his bed, apparently asleep. But the patient saw the painter and this quickened him to activity. No one has the temerity to say the nurse was to blame for this conjunction of events. No one could have anticipated his action. The most skilful nurse in the world could have done no more than did Miss Dushchee. Her battle to save her suddenly maniacal patient from harm is worthy of high praise.

Upon the proof there is nothing whatever to show that any of the doctors or nurses failed to do anything they should have done, or did anything they should not have done. Every charge of negligence contained in the complaint was completely refuted by competent and uncontradicted evidence. This swept away the basis of "res ipsa loquitur."

The motion for a directed verdict should have been granted. Had the jury found for plaintiff instead of defendant, it would have been the court's duty to set it aside.

The jury's verdict should be sustained, and the order granting a new trial reversed.